H.E. NO. 84-51

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

FAIR LAWN BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CI-82-48-15

STANLEY FRED SOLOMONS,

Charging Party.

FAIR LAWN EDUCATION ASSOCIATION,

Respondent,

-and-	Docket No. CI-82-49-16

STANLEY FRED SOLOMONS,

Charging Party.

Appearances:

For the Fair Lawn Board of Education

Jeffer, Hartman, Hopkinson, Vogel, Coomber & Peiffer, Esqs. (Reginald F. Hopkinson, Esq.)

For the Fair Lawn Education Association

Schneider, Cohen & Solomon, Esqs.

(David Solomon, Esq.)

For the Charging Party

Raymond G. Kruse, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on April 15, 1982, Docket No. CI-82-48-15, by Stanley Fred Solomons (hereinafter the "Charging Party" or "Solomons") alleging that the Fair Lawn Board of Education (hereinafter the "Board") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Board adopted a new practice during the 1980-81 school year, which allowed certain teachers at the Fair Lawn High School to commence teaching at 7:30 a.m., rather than the normal starting time of 8:15 a.m., and thereafter permitting those teachers to conclude their teaching day at 2:00 p.m. and to leave the building at 2:30 p.m., and they received additional compensation for teaching a sixth class pursuant to Article VIII, Section C of the 1980-82 collective negotiations agreement between the Board and the Fair Lawn Education Association (hereinafter the "Association"); and the Charging Party alleges further, notwithstanding that he also commenced teaching at 7:30 a.m., and thereafter taught six classes, he was not permitted to leave the building (Memorial Junior High School) until 3:00 p.m. and was discriminatorily treated since he received no additional compensation for the sixth class, and further, the same situation continued during the 1981-82 school year when he taught five classes, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(3) and (7) of the Act.1/

An Unfair Practice Charge was also filed with the Commission by Solomons on April 15, 1982, Docket No. CI-82-49-16, alleging that the Association had engaged in unfair practices within the meaning of the Act, in that the Association failed to represent fairly both members and non-members of the Association, Solomons being a non-member, because the Association refused to submit Solomons' written grievance to binding arbitration on October 14, 1981. In addition, it is alleged that the Association refused to permit Solomons to explain the facts of his case prior to reaching its decision and also refused to allow Solomons to discuss his grievance with the New Jersey Education Association Field Representative and an attorney. Finally, the Association failed to respond in writing with reasons for the refusal of the Association to submit Solomons' grievance to binding arbitration, all of which is alleged to be a violation of N.J.S.A. 34:13A-
5.4(b)(1) and (5) of the Act.2/

It appearing that the allegations of the Unfair Practice Charges, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on August 23, 1982 and the two Unfair Practice Charges were consolidated for hearing. Pursuant to the Complaint and Notice of Hearing, hearings were held on March 7 and November 16, 1983 and January 18, 19843/ in Newark, New Jersey, at which time the parties were given an opportunity to make preliminary motions, examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by March 12, 1984.

The Board and the Association were permitted to amend their respective Answers to the Complaint at the first day of hearing on March 7, 1983 in order to assert the defense of statute of limitations under Section 5.4(c) of the Act (1 Tr. 23, 24). However, a decision on the motions to dismiss was reserved by Hearing Examiner Josephson.

Unfair Practice Charges having been filed with the Commission, a question concerning alleged violation of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT AS TO THE BOARD

1.	The Fair Lawn Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Stanley Fred Solomons is a public employee within the meaning of the Act, as amended, ans is subject to its provisions.

3.	Solomons has been employed as a music teacher by the Board since 1972. He first taught at the Thomas Jefferson Junior High School and continued there until the school was closed in or around 1977 when Solomons moved to the Memorial Junior High School in September 1977.4/

4.	From 1972 through the end of the 1980-81 school year Solomons taught six classes per day. Contrary to the contention of the Charging Party, the Hearing Examiner finds as fact that Solomons' teaching day commenced at 7:45 a.m. and concluded at 3:00 p.m. for a total of 7 1/4 hours per day, which total was the same as for all other teachers in the District. Support for this finding, in the case of Solomons, is found in RB-1, which is Solomons' teaching schedule for the 1980-81 school year. This exhibit indicates that "early morning band" commenced at 7:45 a.m. and concluded at 8:15 a.m. and Solomons' teaching day concluded at 2:51 p.m. The fact that Solomons may have reported prior to 7:45 a.m., in the same fashion as other teachers in the District who reported prior to 8:15 a.m., in no way militates against the Hearing Examiner's finding that Solomons' teaching day has always commenced at 7:45 a.m. The Hearing Examiner credits the testimony of Superintendent Thomas J. Cannito in this regard.

5.	During the 1980-81 school year two teachers of Drivers Education and two teachers of Physical Education at the High School were scheduled to commence teaching at 7:30 a.m. with early dismissal at approximately 2:30 p.m. These teachers were Nicholas Minervini, Richard Stone, Sidney Rosenthal and Ellen Daniel: See CP-14, pp. 1-5. The Hearing Examiner credits the testimony of the Superintendent that the foregoing situation at the High School occurred only as to these four named teachers and occurred only during the 1980-81 school year. The four named teachers at the High School were compensated for teaching an additional sixth period in accordance with the following provision of the 1980-82 collective negotiations agreement between the Board and the Association, i.e., Article VIII, "Teaching Hours and Teaching Load," Section C:

In the secondary schools no teacher shall be required to teach more than 5 periods per day without additional compensation. If a teacher is assigned an additional period in a given day, that teacher shall be compensated at the rate of $9.00 per period in 1980-81 and $10.00 per period in 1981-82. (J-7).

6.	When the situation of additional compensation for the four named teachers at the High School came to the attention of Solomons he initiated a Level II grievance with Memorial principal David Miller on December 23, 1980 (CP-1). Upon a disclaimer by Miller that he could not resolve the grievance, Solomons submitted a Level III grievance with the Superintendent on January 6, 1981 (CP-2). After a protracted delay the Superintendent denied the grievance on July 16, 1981, giving as his reasons: (1) the existence of a longstanding practice of no change in Solomons' schedule with respect to early morning band; (2) the fact that Solomons' terms and conditions of employment had not changed since his initial acceptance of the band assignment; and (3) the contract specifies monetary payment only at the secondary level and, under certain circumstances, at the elementary level (CP-2). On July 24, 1981 Solomons submitted his grievance at Level IV before the Board (CP-4 and CP-5). Under date of August 3, 1981 Solomons was advised by the Board that his grievance was denied on July 30, 1981 (CP-6).

7.	Solomons also contends, in support of his claim for additional compensation in the 1980-81 school year, that two other Memorial teachers, Judith Boyce and Norman Horowitz, received additional compensation under the agreement for additional teaching periods from September 4, 1980 through June 19, 1981 (RB-8 and RB-9). Excerpts from Board minutes from June 8, 1977 through January 20, 1983 (RB-2 through RB-12) were received in evidence, which indicate payment to named teachers for additional teaching periods at Memorial. The Superintendent testified credibly that the explanation for these payments arose from the fact that these were Special Education teachers who historically received compensation for the sixth period in a teaching day. The Hearing Examiner finds as a fact that this longstanding practice regarding Special Education teachers at Memorial in no way supports a like claim by Solomons who is a music teacher.5/

8.	In the 1981-82 school year, and continuing to date, Solomons has, in addition to early morning band, had four classes plus two planning periods and one assigned duty. Commencing with the 1981-82 school year Solomons claims compensatory time instead of monetary compensation for an additional teaching period. The Hearing Examiner finds as a fact that Solomons has failed to prove such a claim by a preponderance of the evidence.

9.	On November 30, 1981 Solomons filed a Petition with the Commissioner of Education, complaining about the same subject matter as the Unfair Practice Charge against the Board (CP-11). The Board filed a responsive Answer under date of January 4, 1982 (CP-12). The instant record does not disclose the precise status of the matter before the Commissioner of Education.

FINDINGS OF FACT AS TO THE ASSOCIATION

10.	The Fair Lawn Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

11.	After Solomons learned of the Board's denial of his grievance under date of August 3, 1981, supra Solomons wrote to John Kelly, a Vice-President of the Association, on August 7, 1981, in which Solomons requested that the Association submit his grievance to binding arbitration (CP-7). When he received no response from Kelly, Solomons contacted Amelia Morgan during the first week of school, Morgan being one of the officers of the Association. Morgan told Solomons that she would go to the Executive Committee of the Association and, as a result, Solomons received a memo from Marie A. Tas, an Association Vice President, under date of September 23, 1981, which advised Solomons that the Executive Committee would meet with Solomons on Monday, October 12, 1981 (CP-8).

12.	Solomons testified that the Executive Committee meeting on Monday October 12, 1981 lasted 20 to 25 minutes and that he was not given an opportunity to discuss the merits of his grievance. He said that he was told almost immediately that the Executive Committee had decided not to proceed to binding arbitration (1 Tr. 54, 55). Solomons then requested that he had an opportunity to explain the merits of his grievance to an NJEA Field Representative or an attorney representing the Association (1 Tr. 55). This request was allegedly denied because Solomons was not a dues paying member of the Association.6/

13.	President Mellor, contradicting Solomons, testified that the Executive Committee met with Solomons on October 12, 1981 for 30 to 45 minutes and gave Solomons an opportunity to explain his grievance. The Executive Committee told Solomons that it would get back to him and did not make a decision in his presence. According to Mellor, the Executive Committee decided not to take Solomons' grievance to arbitration because of the past practice clause in the agreement and the fact that other teachers were like situated, working 7 1/4 hours per day. The communication to Solomons of the Executive Committee's decision was verbal, there being no practice or policy of the Association to reply to requests for binding arbitration in writing.7/

THE PRELIMINARY ISSUE

Should Solomons' Unfair Practice Charges against the Board and against the Association be dismissed on the ground that they were untimely filed under Section 5.4(c) of the Act?

DISCUSSION AND ANALYSIS

Solomons' Unfair Practice Charge

Against The Board Should Be

Dismissed As Untimely Filed

Since the Board's amendment of its Answer at the hearing, asserting the defense of the six-month statute of limitations under Section 5.4(c) of the Act, the Board has vigorously pursued this defense, both at the hearing and in its post-hearing brief. The Charging Party's brief does not deal with the statute of limitations defense.

Section 5.4(c) of the Act provides that no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the Charge unless the party aggrieved was prevented from such filing. The Board argues that the six months should be deemed to have run from June 30, 1981, the termination of the 1980-81 school year, in which Solomons complained that he was denied compensation for the teaching of an additional sixth class. Thus, the Board perceived that Solomons did not file his Unfair Practice Charge against the Board until more than nine months after the last date of the commission of any alleged unfair practice by the Board.

However, the Hearing Examiner is persuaded that the operative date for the running of the statute of limitations under Section 5.4(c) of the Act is August 3, 1981, the date when the Board's Secretary advised Solomons that the Board had denied his grievance on July 30, 1981 (CP-6). The Board was in no way responsible for what transpired thereafter with respect to Solomons' seeking to have the Association submit his grievance to binding arbitration, which event took place in October, 1981.

Nor, was the Board in any way involved in Solomons' decision to file a Petition with the Commissioner of Education on November 30, 1981 (CP-11). The filing by Solomons with the Commissioner of Education in no way tolled the running of the statute of limitations and, in this connection, the Hearing Examiner cites State of New Jersey, P.E.R.C. No. 77-14, 2 NJPER 308 (1976), aff'd. 153 N.J. Super. 91 (App. Div. 1977), pet. for certif. den. 78 N.J. 326 (1978). In that case an aggrieved college professor filed several grievances in November and December 1974, was removed from the payroll in June 1975, received an arbitration award in August 1975, was not reappointed in December 1975 and filed an Unfair Practice Charge with the Commission on March 19, 1976. The Commission, affirmed by the courts, held that the filing of grievances and the exhaustion of the grievance procedure did not toll the six-month statute of limitations in Section 5.4(c) of the Act. Thus, when the Charging Party there filed its charge in March 1976, it was more than a year from the filing of the grievances in November and December 1974.

The Hearing Examiner finds the State of New Jersey case, supra, is dispositive of any contention that the statute of limitations was tolled by Solomons' having filed a Petition with the Commissioner of Education in November 1981. This filing no more tolled the statute of limitations under Section 5.4(c) than did the filing of grievances and the exhausting of the grievance procedure in State of New Jersey.

This is not a case where an aggrieved party filed suit in the Superior Court well within the six-month time period as was the case in Kaczmarek v. New Jersey Turnpike Authority, 77 N.J. 329 (1978) where the Supreme Court held that the Superior Court should have transferred the case to the Commission (77 N.J. at 344). There is no suggestion in Kaczmarek8/ that a filing in an administrative agency, such as with the Commissioner of Education, tolls the statute of limitations governing another administrative agency.

Thus, for all of the foregoing reasons, the Board's Motion to Dismiss the Unfair Practice Charge filed by Solomons against it on the ground that it was filed more than six months after the Board denied Solomons' grievance is granted.

Solomons' Unfair Practice Charge Against

The Association Should Not Be Dismissed

As Untimely Filed

The question of timeliness vis-a-vis the Association is quite different from the same question as to the Board. In the case of the Association the time for Solomons to have filed against it ran either from October 14 or October 15, 1981. In the Unfair Practice Charge Solomons alleged that the Association ceased to communicate with him on October 14, 1981. At the hearing Solomons testified without contradiction that he received the October 14, 1981 memo from Mellor (CP-9) on October 15th. The date of October 12, 1981, when Solomons met with the Executive Committee, is not the operative date for the running of the statute of limitations since the Hearing Examiner has found that no decision was reached by the Executive Committee on that date. Thus, the operative date for the running of the statute is either October 14 or October 15, 1981.

The Hearing Examiner elects to use the later date since this was the date that Solomons received the memo from Mellor and this constituted the last communication from the Association to Solomons. Plainly, the filing date of April 15, 1982 is exactly six months from October 15, 1981 and, thus, Solomons' filing was timely under Section 5.4(c) of the Act. The Hearing Examiner will now proceed to consider the merits of the Unfair Practice Charge against the Association.

THE ISSUE

Did the Respondent Association breach its duty of fair representation in violation of Subsection (b)(1) of the Act when in October 1981 it refused to take Solomons' grievance to binding arbitration?

FURTHER DISCUSSION AND ANALYSIS

The Hearing Examiner finds and concludes that the Association did not violate the Act by its conduct herein, namely, its refusal to take Solomons' grievance to binding arbitration in October 1981.

It should be noted first that Solomons failed to prove by a preponderance of the evidence any discrimination or disparate treatment of him by the Association based on his non-membership in the Association. The Association's conduct is thus viewed in the context of actions taken towards Solomons without regard to membership or non-membership in the Association. Solomons' claim that he was denied the opportunity to speak to an NJEA Field Representative or an attorney representing the Association is irrelevant to the determination herein since the gravamen of the Unfair Practice Charge against the Association is its failure to have taken Solomons' grievance to binding arbitration. It was the Executive Committee's ultimate decision as to whether or not to proceed to arbitration, thus any discussion of the merits of the grievance with the Field Representative or the attorney would have been extraneous to the decision of the Committee. Thus, the Hearing Examiner need not decide whether or not a non-member has the right to meet with a Field Representative of the NJEA or the attorney for the Association.

The Commission, relying on the Federal sector precedent in interpreting the Act (Lullo v. Int'l Assn. of Fire Fighters, 55 N.J. 409, 424) has decided a number of cases involving an alleged breach of the duty of fair representation under Subsection (b)(1) of the Act. For example, in New Jersey Turnpike Employees Union, Local 194, P.E.R.C. No. 80-38, 5 NJPER 412 (1979), a case involving the refusal of the union to take an employee's grievance to arbitration, the Commission said:

In considering a union's duty of fair representation, certain principles can be identified. The union must exercise reasonable care and diligence in investigating, processing and presenting grievances; it must make a good faith judgment in determining the merits of the grievance; and it must treat individuals equally by granting equal access to the grievance procedure and arbitration for similar grievances of equal merit. (5 NJPER at 413).

In that case the Commission found that the refusal to take an employee's grievance to arbitration was not a breach of the duty of fair representation.

The Federal precedent, upon which the Commission has relied in determining whether or not a union has breached its duty of fair representation regarding a refusal to arbitrate usually begins with Vaca v. Sipes, 386 U.S. 171, 64 LRRM 2369 (1967) where the United States Supreme Court articulated the test for a breach of the duty of fair representation as being one where the union's conduct towards the employee "is arbitrary, discriminatory or in bad faith." (386 U.S. at 190). See also, Amalgamated Association, etc. v. Lockridge, 403 U.S. 274, 77 LRRM 2501 (1971) and Hines v. Anchor Motor Freight Inc., 424 U.S. 554, 566-69, 91 LRRM 2481 (1976). More recently, see Seymour v. Olin Corp., 666 F.2d 202, 208 (5th Cir. 1982) and Dober v. Roadway Express, __ F.2d ___, 113 LRRM 2594, 2596 (7th Cir. 1983).

As found above by the Hearing Examiner, Mellor provided good and sufficient reasons why the Executive Committee decided not to take Solomons' grievance to binding arbitration, citing the past practice clause in the agreement and the fact that other employees were like situated, working 7 1/4 hours per day. Thus, the Hearing Examiner cannot conclude other than that the Association's conduct towards Solomons was neither arbitrary, discriminatory nor in bad faith.

* * *

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondent Board's Motion to Dismiss the Unfair Practice Charge filed against it by Stanley Fred Solomons is granted on the ground that it was not timely filed under N.J.S.A. 34:13-5.4(c).

2.	The Respondent Association did not violate N.J.S.A. 34:13A-5.4(b)(1) and (5) when it refused in October 1981 to take Stanley Fred Solomons' grievance to binding arbitration.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaints be dismissed in their entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	April 3, 1984

Trenton, New Jersey